Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

SB 12-125 Crimes Against Unborn Children Sen. Harvey & Rep. Holbert Staff Name: Kate Hennessy What the Bill Does: Currently, any person who intentionally causes the end of a pregnancy of a woman, by any means other than justified medical termination or birth, commits criminal abortion. Criminal abortion is a class 4 felony, unless the woman dies as a result of the criminal abortion, in which case it is a class 2 felony.1 There is also a separate statute stating that unlawful termination of a pregnancy, a class 4 felony, occurs when a person has the intent to unlawfully terminate a pregnancy and does so.2 Under SB 12-125 there would be several new offenses for unlawful termination of a pregnancy: (1) unlawful termination of pregnancy in the first degree, a first class felony, when there was deliberation and intent to end the pregnancy without the womans consent; (2) unlawful termination of a pregnancy in the second degree, a class 2 felony, when a person knowingly ends a pregnancy without the womans consent; (3) unlawful termination of a pregnancy in the third degree, a class 4 felony, when someone recklessly ends a pregnancy without consent; and (4) unlawful termination of a pregnancy in the fourth degree, a class 5 felony, when with criminal negligence someone ends a pregnancy. SB 12-125 also adds vehicular unlawful termination of a pregnancy, and aggravated vehicular unlawful termination of a pregnancy as potential charges. In addition, the penalty for criminal abortion in which the woman does not die becomes a class 2 felony. Finally, SB 12-125 revises 18-3.5-102, which defines exclusions from offenses against pregnant women. The revised exclusion section of SB 12-125 prohibits prosecution of a person who provides medical care, furnishes hospital services, or provides a justified medical termination, which requires certification by members of a special hospital board that there be a threat to the womans health, that the child would be born with physical deformity or mental retardation or that the pregnancy was the result of a criminal act or incest.3 However, under SB 12-125 the prosecution of a person who preforms abortions with the mothers consent is not expressly forbidden. Colorado Context: A similar bill, HB 11-1256, was introduced last year by bipartisan sponsors. However, HB 11-1256 was killed by its sponsor, Rep. Mark Wallar, following strong criticism by anti-abortion groups who objected to the following sentence, which isn't included in SB 12-125: "The bill does not confer the status of
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C.R.S. 40-6-102 C.R.S. 18-3.5-101 3 C.R.S. 18-6-101.

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'person' upon a human embryo, fetus, or unborn child at any stage of development prior to live birth."4 National Context: Many states have enacted different statutes in response to fetal homicide, or the unauthorized killing of a fetus. States where a third party can terminate a pregnancy without a womans consent and escape criminal prosecution rely on a technical post-trauma determination to decide if a homicide has occurred: Was the fetus born alive outside of the mother's womb before death? However, the majority approach holds that when a person kills a pregnant woman, or injures a pregnant woman and kills her fetus, the two harms each warrant separate punishment.5 As of 2010 at least 38 states have fetal homicide laws. Moreover, as of 2009, although there have been numerous challenges, no court has overturned a fetal homicide law for violating the constitutional right to abortion. The following are examples of criminal statutes for fetal homicide in nearby states as of 2010:6 Kansas : a "person" and "human being" shall also mean an unborn child when defining victims of murder in the first and second degrees, manslaughter, capital murder and involuntary manslaughter while driving under the influence of alcohol or drugs. Utah: a person commits criminal homicide if a person intentionally, knowingly, recklessly causes the death of another human being, including an unborn child at any stage of development. Nevada: a person who willfully kills an unborn quick child by any injury committed upon the mother of the child commits homicide. Nebraska: Homicide of the Unborn Child Act defines murder of an unborn child in the first degree, murder in the second degree, manslaughter, and vehicular homicide. Wyoming, Montana and New Mexico do not have laws regarding fetal homicide. Bill Provisions: Creates new offenses for unlawful termination of a pregnancy, including unlawful termination of pregnancy in the first degree, unlawful termination of a pregnancy in the second degree, unlawful termination of a pregnancy in the third degree, unlawful termination of a pregnancy in the fourth degree, and vehicular unlawful termination of a pregnancy. Changes the penalty of criminal abortion in which the woman does not die to a class 2 felony. Revises the exclusions section so that prosecution of a person who provides abortions is not expressly forbidden, although the prosecution for a person who provides medical care, furnishes hospital services, or provides a justified medical termination is forbidden. Fiscal Impact: The Colorado Legislative Council estimates there will be a fiscal impact of $ $1,776 because of computer changes. State expenditures will increase by $165,652 in FY 2013-14 and $139,199 in FY 2014-15 because of increased cost to the Public Defenders Office and the DOC. Finally, there is an estimated $5,000 increase in state revenue from fines collected.7

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Colorado crime bill stirs abortion debate; The Denver Post, available at http://www.denverpost.com/legislature/ci_19915782. Joanne Pedone, Filling the Void: Model Legislation for Fetal Homicide Crimes, 43 Colum. J.L. & Soc. Probs. 77 (2009). 6 Fetal Homicide Laws; NCSL, available at www.ncsl.org/issues-research/health/fetal-homicide-state-laws.aspx.
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Kerry White, Fiscal Note: SB 12-125 (Feb. 6, 2012), available at http://www.leg.state.co.us/CLICS/CLICS2012A/csl.nsf/BillFoldersSenate?openFrameset.

DRAFT 2/12/2012 4:19 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.